Allowed

Muhammed Azeem v. Najumudeen M.

Kerala HC4 Aug 2022MACA/318/2012

Case brief

AI extract

What is this about?

In an appeal against the Motor Accidents Claims Tribunal award, the High Court enhanced the compensation for an injured appellant who suffered a crushed leg injury. The Court accepted higher claimed monthly income and added amounts for loss of earnings, disability income, pain, and suffering.

What did the court decide?

Compensation enhanced to Rs.6,59,700/-, directed to be deposited by the third respondent insurance company with 7.5% interest.

Muhammed Azeem Vs Najumudeen M. — Medical Negligence | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

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THURSDAY, THE 4TH DAY OF AUGUST 2022 / 13TH SRAVANA, 1944

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MACA NO. 318 OF 2012

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AGAINST THE AWARD IN OPMV 202/2005 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL, KOLLAM

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APPELLANT/PETITIONER:

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MUHAMMED AZEEM
S/O.MUHAMMED KASSIM, KULATHILAZHIKOM VEETTIL,
NEAR NAGARUKAVU TEMPLE, THEKKUMBHAGOM CHERRY,
KOTTAPURAM, PARAVOOR.
BY ADVS.
SRI.P.K.MUHAMMED
SRI.S.VIJI

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RESPONDENTS/RESPONDENTS:

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1NAJUMUDEEN M.
S/O.MUHAMMEED ISMAIL,
ALUVILA PUTHAN VEEDU, KODAKKAVYAM,
VILAVOORKONAM, KALLUVATHUKKAL,
KOLLAM, PIN-691578.

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2REJIMON
S/O.TAJUDEEN, BUNGLAVIL VEEDU,
EAST OF NADAYARA JUNCTION,
AIYOOR VILLAGE, CHIRAYANKEEZHU TALUK,
VARKALA, PIN-695141.
3THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO.LTD.,
PARAMESWARAN PILLAI BHAVAN,
KOLLAM, PIN-691001.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 04.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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MACA NO. 318 OF 2012

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JUDGMENT

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The petitioner in O.P.(MV).No. 202/2005 on the files of the Motor Accidents Claims Tribunal, Kottayam is the appellant in this appeal filed under Section 173 of the MV Act. The respondents herein are the respondents before the Tribunal.

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Heard the learned counsel for the appellant as well as the learned counsel appearing for the Insurance Company.

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3. Short facts:

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The appellant, being injured, in a motor accident occurred on 09.04.2004 at about 13.00 hours, while he was riding on his Hero Honda motor cycle bearing registration No.KL-2/H 6941 through Chathannoor – Paravoor road, from north to south, had lodged claim petition under Section 166 of the MV Act before the

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MACA NO. 318 OF 2012

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Tribunal, alleging negligence on the part of the second respondent, the driver of the mini lorry bearing registration No.KL-13/B 3242. According to the appellant, the accident happened when the mini lorry driven by the second respondent in a rash and negligent manner hit against the motor cycle, where appellant was travelling. Accordingly, he pressed for compensation to the tune of Rs.10,00,000/- from respondents 1 to 3.

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Respondents 1 and 2 were declared ex parte by the Tribunal.

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The third respondent Insurance Company filed written statement and disputed the negligence alleged against the second respondent. The quantum of compensation is also disputed while admitting the policy to mini lorry bearing registration No.KL-13/B 3242.

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The Tribunal, acting on documentary evidence marked as Exts.A1 to A23 series and Ext.X1 driving license along with physical observation made by the Tribunal on

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MACA NO. 318 OF 2012

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appearance of the appellant, adjudicated the matter and finally granted Rs.4,71,700/- as compensation along with 7.5% interest from the date of petition.

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The learned counsel for the appellant would submit that out of Rs.4,71,700/-, Rs.2,42,300/- was granted towards medical expenses in this case, where the appellant sustained very serious injuries and he underwent prolonged treatment thereof. It is submitted that the monthly income fixed by the Tribunal for assessing ‘loss of earnings’ as well as ‘loss of disability income’ is on lower side.

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Per contra, it is submitted by the learned counsel for the insurer that the appellant not produced any disability certificate before the Tribunal and the Tribunal fixed 20% disability on the basis of personal observation made by the Tribunal, after securing appearance of the appellant before the Tribunal. Since the fixation of disability at 20% is not challenged, I am not

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MACA NO. 318 OF 2012

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inclined to re-visit the percentage of disability.

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In this matter, in paragraph No.8 of the award, the Tribunal narrated the injuries and treatment underwent by the appellant in detail. The same is as under:

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“Crush Injury (L) leg with comminuted fracture tibia and fibula

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Neuro vascular and muscle crushing fracture”

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“Ext.fixator applied on 9-4-04, cross leg flap done on 7-504, SSG on 17-6-04.

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On 30-4-2005, LRS fixator application done, Corticotomy done sequestrectomy done with a gap of 12cm between proximal and middle segment. Gentamicin Impregnated bone cement rod put at gap. Distraction at corticotomy site started. At discharge, there is discharge from wound. Ext.A 10 discharge summary issued from SP Fort Hospital, Thiruvananthapuram would show that he was again admitted there on 11-7-2005 and discharged on 14-7-2005. Diagnosis is Case of infected non-union (R) tibia on orthofix. On 12-7-2005 cement spacer rod removed. Ext.A11 is treatment certificate. Ext.A12 discharge summary would show that he was again admitted there on 22-5-2006 and discharged on 25-520%). Diagnosis is Acute exacerbation of chronic

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MACA NO. 318 OF 2012

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osteomylitis.

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On perusal of documents referred by the Tribunal, treatment as observed above could be gathered. The Tribunal accepted Rs.5,000/- as monthly income for calculating ‘loss of earnings’ while reducing the same to Rs.2,500/- for calculating ‘disability income’.

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In this matter, the appellant claimed Rs.7,000/as his monthly income on the assertion that he was working as Pharmacist at J.J.Drug House/J.J.Medicals, Chathannoor at the time of accident. In order to prove the same, salary certificate dated 01.02.2005 marked as Ext.A13 has been placed before the Tribunal. It is certified as per Ext.A13 that the appellant was working in the establishment J.J.Drug House/J.J.Medicals with effect from 1992 to 9^th April, 2004 with the starting monthly salary of Rs.3,500/- and during 2000 onwards, his salary was Rs.7,000/- per month. The copy of educational qualification, i.e., Diploma in Pharmacy obtained by the

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MACA NO. 318 OF 2012

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appellant also is marked as Ext.A16.

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Apart from that, the appellant produced a letter issued from the Chicago Beach Hotel, Dubai selecting him to the post of Assistant Pharmacist, with direction to report with original passport, medical certificate and other essential testimonials before 29.04.2004 at their Mumbai office also produced to show that he got selection in the post of Assistant Pharmacist with offer of salary 2500/Dubai Dirham. In view of the above facts, there is no reason to reduce the monthly income of Rs.7,000/- as claimed and therefore, I accept the same as such for calculating ‘loss of earnings’ as well as ‘loss of disability’.

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In this matter, the Tribunal granted ‘loss of earnings’ for a period of six months at the rate of Rs.5,000/-. The same is re-calculated at the rate of Rs.7,000/-. Thus, the appellant is entitled to get Rs.42,000/-. Accordingly, Rs.12,000/- (42,000 – 30,000) more is granted under the head ‘loss of earnings’.

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MACA NO. 318 OF 2012

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8

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The multiplier is not in dispute. Therefore, the ‘loss of disability income’ is re-calculated as under:

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7,000 x 12 x 15 x 20/100 = 2,52,000/-

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Out of which, Rs.90,000/- was granted by the Tribunal. Thus, Rs.1,62,000/- more is granted under the head ‘loss of disability income’.

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The Tribunal granted Rs.25,000/- towards ‘pain and suffering’ and Rs.30,000/- towards ‘loss of amenities. Considering the prolonged treatment, I am inclined to grant Rs.7,000/- each under the heads ‘pain and suffering’ and ‘loss of amenities’.

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In the result, this appeal stands allowed. It is ordered that the appellant is entitled to get Rs.6,59,700/- as compensation, out of which Rs.4,71,700/- was granted by the Tribunal and the balance is Rs.1,88,000/- (Rupees one lakh eighty eight thousand only) is granted as enhanced compensation with the same rate of interest

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MACA NO. 318 OF 2012

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awarded by the Tribunal, payable by respondents 1 to 3 and the third respondent Insurance Company is liable to pay the same with 7.5% interest, from the date of petition till the date of deposit or realisation.

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Hence, the third respondent Insurance Company is directed to deposit the same in the name of the appellant within two months from today. On deposit, the appellant can release the same.

Sd/-

A. BADHARUDEEN

JUDGE

nkr

Muhammed Azeem v. Najumudeen M.

Case brief

What is this about?

What did the court decide?

Muhammed Azeem v. Najumudeen M.

Case brief

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